Constitutional Inclusion of Animal Rights in Germany and Switzerland ...

Society and Animals 18 (2010) 231-250

brill.nl/soan

Constitutional Inclusion of Animal Rights in Germany and Switzerland: How Did Animal Protection Become an Issue of National Importance?

Erin Evans

University of California-Irvine emevans@uci.edu

Abstract Provisions for animal rights have been included in the national constitutions of Switzerland (1992, 2000) and Germany (2002). Protective constitutional inclusion is a major social movement success, and in view of the other movements also seeking increased political visibility and responsiveness, it is worth asking how and why nonhuman animals were allowed into this realm of political importance. This research seeks to explain how animal activists achieved this significant goal in two industrialized democracies. Using an approach drawn from the mainstream canon on social movements, this comparative study attempts to show how cultural factors, institutional selectivity, and the influence of spontaneous events, along with the tactic of "frame-bridging," determined the success of both movements.

Keywords abolition, animal rights, constitutional inclusion, culture, Germany, political opportunity structures, reform, social movements, Switzerland

Switzerland (1992, 2000) and Germany (2002) each included animal protection in their national constitutions in distinctive ways (Nattrass, 2004; Tomoaselli, 2003). Protective constitutional inclusion is a substantive accomplishment for the animal rights movement, and, with groups across the globe seeking increased political visibility and responsiveness for nonhuman animals, one wonders how activists in Germany and Switzerland achieved this demand.

This study examines the process through which animal rights activists in Germany and Switzerland achieved constitutional inclusion of animal rights. The influence of cultural and institutional contexts is illuminated by an examination of the way animal rights activists navigated and utilized those contexts to achieve their demands. In both cases, strategic framing,

? Koninklijke Brill NV, Leiden, 2010

DOI: 10.1163/156853010X510762

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specifically frame-bridging--used to connect animal protection with existing public opinion--proved integral to successful constitutional reform. But the broader implications of this study include how the context of animal protection demands can narrow and mold animal rights movement demands to fit the institutional status quo. This selectivity could stifle the movement by creating innocuous policies ineffective for changing the way that people relate to nonhuman animals as supposedly nonsentient objects (Francione, 1995, 2008). The effect of this dependency on institutional paths is that "animal welfare advocacy is easily absorbed by current systems of domination" (Best & Nocella, 2004, p. 13).

This project involves discussion in two phases: first, how activists achieved constitutional reform and second, the pragmatic effects of that reform. Due to the broad scope of the project, I am focusing, in this first phase, on how animal rights activists navigated the political and cultural context to achieve constitutional reform and how the context steered that demand in specific directions. The second phase, looking at the effects of constitutional reform, is forthcoming.

This Project's Usefulness to Animal Rights Activists

One major challenge to the cohesion of the modern animal rights movement is that an unhealthy and contentious divide exists between welfarists/reformists and abolitionists. Abolitionists believe that reformist policies are not only ineffective but also have the effect of reifying the predominant social attitude that animals are objects for human use. Welfarists/reformists believe that abolitionist endeavors are ineffective and alienate those unfamiliar with the ethics of animal liberation. Most mainstream animal protection groups (e.g., the Humane Society of the United States, PETA, In Defense of Animals, etc.) have abolitionist intentions but diverge in their choice of tactics. Empirically delineating the effects of welfare-based reform is one step toward healing this tactical divide.

In virtually every social movement there exists a cleavage between purists and those seeking incremental change through reform. Animal rights purists argue that welfare reform leaves activists in a disempowered position, as the laws protecting animal welfare are typically ill enforced by authorities. But most activists acknowledge that substantive enforcement of these laws does occur when animal rights organizations use them to press criminal charges and file civil suits against people accused of animal cruelty. More significantly, through this grassroots form of law enforcement, the legal identity of animals is evolving beyond that of objects (Magnotti, 2006).

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In case law there has been a very gradual progression toward granting animals standing in court for cruelty cases, which reflects a slow change from viewing animals as objects toward viewing them as beings legally capable of being wronged. In the broad and long-term pursuit of institutionalizing animal liberation, establishing standing to sue for animals should be the crux of the animal rights movement, as it empowers activists to fight legally against industrialized cruelty and also moves animals out of the conceptual realm of owned objects and into the conceptual realm of sentient beings. Since law both constrains and reflects societal behaviors and beliefs, this legal basis of animals' identities should be a touchstone for activists.

It may appear that simply looking at the changes in social attitudes toward animals over time would illuminate the effects of animal protection reform, but such an examination is confounded by the fact that structural contexts and embedded cultural beliefs may require incremental change in order to create meaningful generational change in the long run. I posit that it is the character of the relationship between the type of incremental change and the structural/social context that determines the long-term effects, meaning that the interaction between activists and the state and between the state and the public are the units of analysis most useful for deconstructing the effects of reformist tactics. As I have suggested, laws both constrain and reflect social attitudes, and in looking at the two campaigns for constitutional inclusion-- one that follows the status quo in allowing governmental authorities discretion in defining animal protection (Germany) and one establishing the "dignity of animals" outside governmental discretion (Switzerland)--I will take the first step toward defining the effects of animal rights reformism.

This Project's Usefulness to Animal Rights and Academia

Most of the academic discourse on the animal rights movement examines the movement while neglecting the institutional or cultural context of animal protection policy formation (Garner, 1995). Studies on mobilization, activist tactics, the sociological and psychological characteristics of animal rights activists, and why individuals choose to be members of a particular organization or movement pervade the mainstream discourse (Lowe & Ginsberg, 2002; Herzog, 1993; Jasper & Poulsen, 1991). Literature looking at the institutional and structural components of animal rights activism and animal protection policies is limited to issue-specific journals published through programs concentrating on animals and politics, such as the Journal of Animal Law from Michigan State University, Tufts' Animals and Public Policy Review, this journal (Society & Animals), all of which may be considered peripheral to

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the mainstream discourse on social movements (Magnotti, 2006; Tomoaselli, 2003). This research trend instructs the academy to present the animal rights movement as a societal anomaly, whereby the psyches and motivations of activists are isolated and scrutinized as an aberration of human behavior, instead of as reflecting a legitimate social movement vying for legitimate demands. Animal rights activists are conceptually left to "the social psychologist whose intellectual tools prepare him to better understand the irrational" (Gamson, 1990, p. 133). For those who believe that the influence of academia on society is important, this presentation of the animal rights movement is a problem, since it distorts--and squelches--the broader legitimacy and efficacy of the movement.

This is not because of any shortage of cases to study. Most industrialized democracies have some form of animal protection legislation available for study (Tomoaselli, 2003); the United States alone has fifty states with varying statewide animal cruelty laws with different histories, contexts, and actors involved in their inception. Given the multitude of available cases, and the effectiveness of comparative studies for isolating determinant variables in successful claims-making (Snow and Soule, 2010; Garner, 1995; Kitschelt, 1986), it seems that the animal rights movement is left outside traditional social movement theory because of the societal marginalization of the movement.

Ironically, its unpopularity makes the animal rights movement ripe for the most fruitful research, as its strategies and tactics must work without majority support. Since constitutional reform is an instrumental demand (i.e., a policy specifically intended to protect animals), it is most contingent on the political opportunity structures through which the movement made this instrumental demand in each case (Einwohner, 1999; Kriesi, Koopmans, Dyvendak, & Giugni, 1995; Kitschelt, 1986). The movement's marginalized position in the political context, coupled with its reliance on political opportunity for successful constitutional reform, renders these successful campaigns ideal for illuminating the tactics most effective for achieving policy reform.

For the purpose of the first phase of this project, the two cases (Germany and Switzerland) are defined as social movement successes with impact of high order. Each case satisfies the two components of this degree of social success: the social movement organization's becoming a legitimate political actor and its achieving demands expected to be beneficial to its members and constituency--in this case, nonhuman animals (Amenta & Caren, 2004; Gamson, 1975, 1990). With this type of target population, "legislation that affects structural reforms favoring the beneficiary group in future dealings with the private target would be considered an impact of high order" (Amenta & Young, 1999). Constitutional inclusion exemplifies this kind of

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structural reform, since an animal's well-being is theoretically placed in consideration at the highest level. Since the demand of animal rights activists for animal protection has been institutionalized through the national constitution, in future dealings with private and state institutions in Germany and Switzerland, animals have been given tangible "rights" insofar as they are used within those institutions. Animals therefore have a form of institutional representation. Although only an extension of this first phase of research will prove this kind of efficacy, for the narrow purpose of examining how animal rights activists succeeded, the two cases are seen as having impacts of high order (Amenta & Caren, 2007, 2004; Stepan-Norris & Zeitlin, 1991).

Are social movement organizations' strategies and tactics for carrying out those strategies responsible for their success or failure? Or do the characteristics of those institutions and structures that a social movement organization must access determine the outcome? Which most explains social movement outcomes--the actions of a social movement organization, or the context that drives those actions? The main groups driving the campaigns--the German Animal Protection League and Swiss Animal Protection--appear to have relatively equal resources, and so resource mobilization is not considered. I will therefore narrow my analysis to two factors used to explain social movement outcomes--strategy/tactics and political opportunity.

Germany

In Germany, animal protection has an extensive history; the first national law, passed in 1871, punished anyone who "publicly or offensively beats or plainly mishandles an animal" (Nattrass, 2004, p. 286). The specific campaign for constitutional inclusion of animals began in the late 1980s, as the existing animal protection law, the Tierschutzgesetz, proved insufficient for prosecuting animal cruelty cases in court.

For instance, in 1994 a Berlin college teacher filed suit after being denied a permit to perform research, due to the cruelty involved. His proposal included sewing the eyes of newborn monkeys shut for one year, then forcing their eyes open to have a copper electrode implanted; the animal would then be bound to a "primate chair" for up to six months while being coerced to do visual exercises. Under the constitution--more specifically, the Basic Law protecting the freedom of research--the court ruled in favor of the researcher, allowing him to perform this experiment. The Basic Law, or Grundgesetz, was a constant obstacle in pursuing cruelty cases, as it protects freedom of artistic expression (sometimes involving animals), freedom of profession, and freedom of research. This drove activists to start a campaign for constitutional

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